Monday, February 07, 2005

If a Corporation Is a Person, Can't We Execute It for Murder?

W.R. Grace and Co. and seven high-ranking employees knew a Montana mine was releasing cancer-causing asbestos into the air and tried to hide the danger to workers and townspeople, according to a federal indictment unsealed Monday. More than 1,200 people became ill, and some of them died, prosecutors said.

The asbestos was naturally present in a vermiculite mine operated by Grace in the small town of Libby for nearly 30 years.

The federal grand jury said that top Grace executives and managers kept secret numerous studies spelling out the risk the cancer-causing asbestos posed to its customers, employees and Libby residents . . . .

The company, knowing of the dangers from its product, provided vermiculite for a junior high school running track and as a base for an ice rink, the indictment said. It said Grace also sold or leased some of its contaminated properties to local residents for homes and businesses, for baseball fields and for city use.

The Bush White House, through its Office of Management and Budget, blocked the EPA’s long-awaited declaration of a public health emergency in Libby in April 2002, and an accompanying warning to millions of citizens that their homes and businesses might contain Grace’s deadly asbestos-contaminated insulation. A drastically watered-down memo was finally made public. The authors [Andrew Schneider and David McCumber, who wrote An Air That Kills: How the Asbestos Poisoning of Libby, Montana, Uncovered a National Scandal] also reveal the Bush White House’s successful campaign to cover up the asbestos problem in lower Manhattan in the wake of the 9/11 terrorist attacks. The authors write “Documents from the White House Counsel on Environmental Quality showed a repeated pattern of downplaying the hazard to health even when the sparse information available showed just the opposite – to the extent of ordering headlines of government news releases changed completely so no threat or hazard was ever conveyed.” One asbestosis-stricken Libby resident said, “Twenty years from now, when those New Yorkers start falling over dead, some young government bureaucrat will get all choked up apologizing for what the EPA and others didn’t do.”

The AP story notes that Grace, which filed for bankruptcy in 2001, "could face a fine of up to $280 million, twice the amount of after-tax profits the government alleges W.R. Grace made from the Libby mine, according to the Justice Department." Or maybe they'll be lucky enough to draw the same federal judges who just ruled in favor of the tobacco companies:

A federal appeals court delivered a major victory to the nation's leading tobacco companies on Friday, ruling that the government cannot force them to turn over $280 billion in profits if a trial court finds that the companies engaged in a conspiracy of fraud and deceit to promote smoking . . . .

In writing the majority opinion for the appeals court, Judge David B. Sentelle found that the 1970 Racketeer Influenced and Corrupt Organizations Act, or RICO, the law under which the Justice Department sued, does not allow the government to recover illegal profits as a way to prevent and restrain future violations.

The law, Judge Sentelle wrote, only provides remedies intended to prevent future violations, like an injunction that blocks certain behavior or the dissolution of a corporation. Forcing the tobacco industry to give up profits, he continued, "is a quintessentially backward-looking remedy focused on remedying the effects of past conduct to restore the status quo."

In a dissenting opinion, Judge David S. Tatel, who was appointed by President Bill Clinton, said Judge [Gladys Kessler, whose ruling was reversed] had properly ruled the companies could be forced to give up their profits. He said that evidence in the case had shown that forcing the companies to relinquish profits would, in fact, "prevent and restrain" them from committing future violations because they would know to expect severe penalties for repeating such conduct.

UPDATE (2/8, via our distinguished colleagues at Cursor): A February 2000 article from Congressional Quarterly describes Montana Senator Conrad Burns's efforts to pass legislation that would cap damage awards in asbestos cases. The bill, S.758, was co-sponsored by 22 Republicans and 5 Democrats. It was introduced by then-Senator John Ashcroft.